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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 10, 2004 Decided October 19, 2004
No. 03-3026
UNITED STATES OF AMERICA,
APPELLEE
v.
ANTHONY L. HOLMES,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 02cr00024–01)
Richard Seligman, appointed by the court, argued the
cause and filed the briefs for appellant.
John P. Gidez, Assistant U.S. Attorney, argued the cause
for appellee. With him on the briefs were Kenneth L.
Wainstein, U.S. Attorney, John R. Fisher, Roy W. McLeese,
III, and Lisa H. Schertler, Assistant U.S. Attorneys.
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
2
Before: SENTELLE, TATEL, and ROBERTS, Circuit Judges.
Opinion for the Court filed by Circuit Judge ROBERTS.
ROBERTS, Circuit Judge: Anthony Holmes appeals from the
district court’s denial of his motion to suppress evidence
seized during a pat-down frisk and a subsequent search
incident to arrest. During the pat-down frisk an officer felt a
hard, square object in Holmes’ jacket pocket. Holmes identi-
fied the object as a scale, which it turned out to be when the
officer removed it. When the officer proceeded with the
frisk, Holmes assaulted him. Once Holmes had been sub-
dued, the police searched him and found cocaine on his
person. They also found a semi-automatic gun and ammuni-
tion beneath the driver’s seat of his car. Holmes argues that
the officers violated the Fourth Amendment by removing the
scale and that this tainted the subsequent seizure of the
cocaine, gun, and ammunition. He also argues that the
search of the car exceeded the legitimate scope of a search
incident to arrest. We find that the scale was seized pursu-
ant to a lawful protective frisk under Terry v. Ohio, 392 U.S.
1 (1968), and that the other evidence was properly seized
pursuant to a search incident to Holmes’ arrest for assault.
We affirm.
I.
At approximately 9:30 p.m. on December 21, 2001, officers
Dereck Phillip and Marvin Washington of the Metropolitan
Police Department observed a car traveling at a high rate of
speed, about 20 miles above the posted speed limit, on Good
Hope Road in southeast Washington, D.C. Officer Phillip
pulled up behind the vehicle, which slowed to a speed of 35
miles per hour, still 10 miles per hour above the speed limit.
As he followed the vehicle, Phillip observed the driver —
Anthony Holmes — continually dipping his right shoulder, as
if he were reaching under the driver’s seat. To Phillip, it
seemed as if Holmes were ‘‘retrieving a weapon from under
his seat or TTT placing a weapon under his seat.’’ Suppres-
sion Hr’g Tr. at 8. Phillip activated his emergency lights.
3
Holmes ‘‘was very hesitant TTT pulling over,’’ but finally did
so. Id. at 7.
Phillip and his partner exited their patrol car and ap-
proached the vehicle. They noticed that Holmes was looking
nervously over his left shoulder and moving around inside the
car. As a safety precaution, the officers approached the
passenger side of the car — where Holmes was not expecting
them — and again observed Holmes reaching beneath his
seat and toward his waist. Phillip knocked on the passenger
side window, and Holmes rolled the automatic window down.
As the window opened, Phillip detected a strong odor of
alcohol. He asked Holmes if he had been drinking. Holmes
replied that he had, and that he was coming from a liquor
store. The officers moved to the driver’s side and asked
Holmes to exit the vehicle. Around this time a third police
officer, Victor Jordan, arrived at the scene.
As he got out of the car, Holmes — who was wearing a
large parka — reached several times toward the right rear
pocket of his pants. Phillip told him to stop: Holmes’ reach-
ing made the officer ‘‘awfully nervous,’’ given that Phillip had
observed Holmes reaching under the driver’s seat in the
course of pulling him over. Id. at 11–12. As Phillip would
later explain, he was ‘‘[c]oncerned that [Holmes] could be
possibly armed.’’ Id. at 12. ‘‘It was just a very awkward
moment. It was just a suspicious manner. It just didn’t feel
comfortable at allTTTT He had a huge black and gray jacket
on with [a] numerous amount of pockets. I couldn’t reveal if
he had a weapon or anything.’’ Trial Tr. at 183. The officer
‘‘felt a threat levelTTTT I assume[d] that he was easily
armed.’’ Id. at 207.
After briefly complying with the officer’s directive, Holmes
once again began to reach for his pocket. At this point, while
Holmes and the officers were standing at the trunk of the car,
Phillip told Holmes that he was going to pat him down.
Phillip later testified that he decided on this course because
‘‘I felt that he was probably armed.’’ Suppression Hr’g Tr. at
14. Holmes placed his hands on the trunk and allowed Phillip
to proceed. During the pat-down, Phillip detected a ‘‘hard,’’
4
‘‘square object’’ in the front left pocket of Holmes’ parka. Id.
at 14. He asked Holmes what the object was, and Holmes
said it was a scale. Later, Phillip would testify that, on
hearing Holmes’ answer, he ‘‘just thought [the object] was a
scale,’’ and did not think it was a firearm. Id. at 14, 32.
Phillip removed the object and verified that it was a digital
pocket scale. He also noticed a white residue on the scale.
Phillip asked Holmes if there was anything else the officers
should know about, and Holmes said there was not. Id. at 15.
Phillip then resumed the pat-down. Holmes once again
moved his right hand toward his back pocket. The officers
again advised him to stop, but this time Holmes responded by
striking Phillip with his left elbow. A melee ensued, during
which Holmes ‘‘threw several punches and kicks’’ at the
officers. Id. at 16. Following a long struggle, Holmes was
restrained and placed in handcuffs.
After they subdued him, the officers searched Holmes’ car
and found beneath the driver’s seat a loaded nine millimeter
semi-automatic gun and a bag with 14 rounds of ammunition.
They also searched Holmes himself and found 58 empty
Ziploc bags and a plastic bag containing crack cocaine.
Officer Jordan drove Holmes to D.C. General Hospital for
treatment of minor injuries sustained in the fight. When
they arrived at the hospital, Jordan discovered another quan-
tity of cocaine on the floor of the transport van in the area
where Holmes had been seated. Jordan would testify that
Holmes had been the van’s only occupant and that pursuant
to established procedure Jordan had inspected the van prior
to placing Holmes in it and had not observed anything on the
floor. Jordan recovered a third quantity of cocaine from
Holmes while searching him in the hospital’s cell block. In
total, 9.2 grams of cocaine base were seized from Holmes and
the floor of the transport van.
A grand jury indicted Holmes for possession of a firearm
and ammunition by a convicted felon, in violation of 18 U.S.C.
§ 922(g)(1); possession with intent to distribute five grams or
more of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1)
and (b)(1)(B)(iii); and possession of a firearm in furtherance
5
of a drug trafficking offense, in violation of 18 U.S.C.
§ 924(c)(1). Holmes filed a motion to suppress all the physi-
cal evidence seized on the night in question. The district
court denied the motion. The court noted that ‘‘there has
been a great deal of case law that has examined when TTT
items are seized unreasonably and no two cases are the
same.’’ Suppression Hr’g Tr. at 56. The court concluded
that ‘‘[i]n this judicial officer’s view it simply cannot be said
that any of the actions of the police on the basis of what they
saw was unreasonable.’’ Id. The court held that the officers
had proper grounds to stop and frisk Holmes and had proba-
ble cause to search him incident to his arrest for assaulting
them. Id. at 57–58. Holmes was convicted on all counts and
now appeals the denial of his motion to suppress.
II.
Holmes contends that the government subjected him to an
unreasonable search and seizure, in violation of the Fourth
Amendment, when Officer Phillip removed the digital scale.
He also maintains that evidence seized after the fight should
be suppressed as fruits of that illegal seizure. Finally, he
argues that the officers were not authorized to search his car
incident to the arrest for assault.
In response, the government maintains that the seizure of
the scale was lawful under Terry v. Ohio, 392 U.S. 1 (1968).
Regarding the search of the car, the government relies on
New York v. Belton, 453 U.S. 454 (1981), and Thornton v.
United States, 124 S. Ct. 2127 (2004), which allow police to
search the passenger compartment of an automobile incident
to the arrest of a recent occupant.
We review de novo the district court’s determination of
questions of law and its conclusions regarding reasonable
suspicion and probable cause. See Ornelas v. United States,
517 U.S. 690, 699 (1996); United States v. Christian, 187 F.3d
663, 666 (D.C. Cir. 1999). At the same time, the Supreme
Court has ‘‘hasten[ed] to point out that a reviewing court
should take care both to review findings of historical fact only
for clear error and to give due weight to inferences drawn
6
from those facts by resident judges and local law enforcement
officers.’’ Ornelas, 517 U.S. at 699. We also defer to the
district court’s determination of witness credibility. See
Christian, 187 F.3d at 666.
A. This case comes down to one question: given all the
foregoing facts, did Officer Phillip act unreasonably when he
removed the hard, square object from Holmes’ jacket pocket
during the course of the frisk? There is no dispute that
Phillip lawfully stopped Holmes for a traffic infraction. See
United States v. Mitchell, 951 F.2d 1291, 1295 (D.C. Cir.
1991). Nor is there any dispute that Phillip was justified in
undertaking a frisk or pat-down of Holmes. Under Terry
and its progeny, a police officer may perform a protective
frisk if he has reason to believe, based on ‘‘specific and
articulable facts TTT taken together with rational inferences
from those facts,’’ that ‘‘he is dealing with an armed and
dangerous individual.’’ Terry, 392 U.S. at 21, 27. During the
traffic stop, Phillip observed Holmes reaching under his seat
as if to hide or retrieve a weapon. Holmes admitted that he
had been drinking. Once out of the car, Holmes kept reach-
ing for his back pocket despite continued warnings from the
officers. These circumstances certainly gave Phillip ample
reason to be ‘‘awfully nervous’’ and ‘‘concerned that [Holmes]
could be TTT armed.’’ Suppression Hr’g Tr. at 11–12.
The contested issue is whether Officer Phillip acted unrea-
sonably in taking out the hard, square object he felt in
Holmes’ parka pocket. The Court in Terry explained that the
scope of a protective frisk ‘‘must be limited to that which is
necessary for the discovery of weapons which might be used
to harm the officer or others nearby.’’ 392 U.S. at 26.
Holmes argues that he told the officer that the object was a
scale, that Phillip thought it was a scale, and therefore there
was no threat to the officers’ safety that justified removing it.
Indeed, Phillip testified that he did not think the object was a
firearm. Suppression Hr’g Tr. at 32.
To the extent this argument is based on Officer Phillip’s
personal motivations for removing the scale, it misses the
point. The propriety of a search under the Fourth Amend-
7
ment depends on ‘‘an objective assessment of the officer’s
actions in light of the facts and circumstances confronting him
at the time,’’ Scott v. United States, 436 U.S. 128, 136 (1978),
and not on the officer’s own subjective intent in executing the
search. See Whren v. United States, 517 U.S. 806, 812–13
(1996); United States v. Rocky Brown, 334 F.3d 1161, 1166–
67 (D.C. Cir. 2003). The fact that Phillip failed to testify that
he thought the object was a weapon, or the fact that he
apparently believed the item was a scale, does not determine
our inquiry. See United States v. Monte Brown, 374 F.3d
1326, 1327 (D.C. Cir. 2004) (finding probable cause to search
trunk in light of inferences from items found in passenger
compartment, even though officer ‘‘said nothing about what
the items found in the passenger compartment signified to
him’’); United States v. Swann, 149 F.3d 271, 272 (4th Cir.
1998) (‘‘Although the searching officer did not testify that he
believed the item in Swann’s sock to be a weapon when he
removed it, a reasonable officer in his circumstances could
well have believed that the item was a weapon TTT and
therefore the seizure did not exceed the permissible bounds
of a Terry stop.’’).
The only relevant question is whether a reasonable officer,
knowing what Phillip knew at the moment of seizure, would
have been justified in removing the scale. Under these
circumstances, we hold that he would have been. Recollect
what Officer Phillip knew as he began to frisk Holmes:
Holmes had been very hesitant to pull over in the first place.
While in the automobile, he had repeatedly reached under the
driver’s seat, as if to retrieve a weapon. He had been
drinking. Once out of the car, he continuously reached for
his pocket — despite repeatedly being directed not to do so.
He was wearing a ‘‘huge’’ jacket with ‘‘numerous’’ pockets.
Officer Phillip was fully justified in being ‘‘awfully nervous’’ as
he began the frisk. Suppression Hr’g Tr. at 11.
Then he felt the hard object in one of these numerous
pockets. Holmes said it was a scale. Officer Phillip thought
it was. But the Fourth Amendment does not require the
officer to gamble his safety and that of those around him on
the accuracy of such assumptions. The officer did not have to
8
take Holmes at his word that the object was a scale, and
proceed with the frisk solely on that basis. We cannot fault
the officer for taking the simple step of checking to ensure
that the hard object was not something more threatening
before continuing. The object did not feel like a firearm, but
it could have been another type of weapon — a box cutter, for
example. See Swann, 149 F.3d at 272 (reasonable for officer
to believe hard object in defendant’s sock, which turned out to
be credit cards bound together, could have been a box cutter).
Moreover, the scope of a Terry frisk is not limited to
weapons, but rather to ‘‘concealed objects which might be
used as instruments of assault.’’ Sibron v. New York, 392
U.S. 40, 65 (1968) (emphasis added). A hard, square object
would seem to fit that description well. Other courts have
admitted items that strike us as less likely instruments of
assault than the scale at issue here. See United States v.
Rahman, 189 F.3d 88, 120 (2d Cir. 1999) (envelope containing
fraudulent passports); United States ex rel. McNeil v. Run-
dle, 325 F. Supp. 672, 677 (E.D. Pa. 1971) (watch).
The Supreme Court has recognized that ‘‘traffic stops may
be dangerous encounters.’’ Maryland v. Wilson, 519 U.S.
408, 413 (1997); see also Pennsylvania v. Mimms, 434 U.S.
106, 110 (1977). Approaching a stopped car — particularly
when there is reason to believe the driver or occupants may
be armed — is one of the more perilous duties imposed on
law enforcement officers. In 2002, according to a Depart-
ment of Justice report, 58,066 police officers were assaulted in
the line of duty. U.S. Dept. of Justice, Federal Bureau of
Investigation, Uniform Crime Reports: Law Enforcement
Officers Killed and Assaulted 73 (2002). Eleven percent of
those assaults occurred during traffic stops or pursuits. Id.
In the same year, 56 officers were killed in the line of duty
(not counting accidental deaths), and 10 of those killings took
place during traffic stops or pursuits — the second leading
category, behind ambushes. Id. at 5. We cannot say that
Officer Phillip took any unreasonable steps in attempting to
ensure that he would not become one of these statistics.
9
B. Finding nothing unlawful about the seizure of the
scale, we do not reach Holmes’ argument that the seizure
tainted the search incident to his arrest for assault. We can
similarly dispose of Holmes’ related argument that he was
effectively placed under arrest during the frisk rather than
after the assault. As our holding above makes clear, Officer
Phillip did not exceed the scope of a proper Terry frisk and,
accordingly, there is no basis for finding that the pat-down
constituted an arrest.
We are also unpersuaded by Holmes’ final contention —
that the search of his car exceeded the scope of a search
incident to arrest. When the police make a lawful arrest, the
Fourth Amendment permits them to search the arrestee and
the area within his immediate control. Chimel v. California,
395 U.S. 752, 763 (1969). In New York v. Belton, 453 U.S.
454, 460 (1981), the Supreme Court held that such searches
may extend to the passenger compartment of an automobile,
so long as the person arrested was an occupant or recent
occupant of the automobile. Just last Term, the Court clari-
fied that Belton’s rule applies regardless of whether the
police first initiate contact with the arrestee while he is still
inside the vehicle. Thornton v. United States, 124 S. Ct.
2127, 2129 (2004).
Here, the district court found that Holmes was placed
under arrest for assaulting Officer Phillip. Suppression Hr’g
Tr. at 57. The court credited Phillip’s testimony that Holmes
had elbowed him without provocation and had proceeded to
engage the officers in a fight. See id. at 56–57. Thus, the
officers clearly had probable cause to arrest Holmes and to
search both his person and the passenger compartment of his
car.
Holmes first argued, in his initial brief, that the Belton rule
did not apply to this case because the police arrested him
outside his car. If that argument had any traction before
Thornton it has none after it; the police in Thornton did not
even accost the defendant until after he was outside the
vehicle, see 124 S. Ct. at 2129, and the Court ruled that
Belton still applied.
10
After we asked the parties to submit supplemental briefs in
light of Thornton, Holmes understandably altered his position
and argued for reversal based on the district court’s failure
expressly to find that the vehicle was subject to the defen-
dant’s control at the time the officers commenced the search.
According to Holmes, in the absence of such a finding, the
underlying justification for a Belton search evaporates.
Supp. Br. at 3, 5.
This contention was rejected in United States v. Wesley,
293 F.3d 541, 549 (D.C. Cir. 2002) (‘‘the police may search the
passenger compartment of the vehicle without regard to
whether the occupant was removed and secured at the time of
the search’’). Indeed, in Thornton itself, the defendant had
been handcuffed and placed in the back seat of the patrol car
prior to the search of his vehicle. See 124 S. Ct. at 2129.
The search was upheld even though the defendant plainly had
no control over the vehicle at the time.
III.
‘‘[W]hat the Constitution forbids is not all searches and
seizures, but unreasonable searches and seizures.’’ Terry,
392 U.S. at 9 (citation omitted). We agree with the district
court that ‘‘it simply cannot be said that any of the actions of
the police on the basis of what they saw was unreasonable.’’
Suppression Hr’g Tr. at 56. The judgment of the district
court is affirmed.